Coming Your Way: Roadside Saliva Tests

July 27, 2016 / Dennis Bittinger / Leave a comment

I’ve posted in the past about the difficulties of testing for marijuana in drunk driving investigations. See Does Presence of Marijuana in Blood Constitute Drunk Driving?, Identifying and Proving DUI Marijuana ("Stoned Driving") and Driving + Traces of Marijuana = DUI. But John Ibanez and I have also posted about the increasing likelihood of roadside marijuana tests in the future. See Roadside Oral Swab Tests Coming? and California Proposes New Law to Allows Roadside Marijuana Testing.

The future is now….

Not Just Your Breath — Police Now Conducting Saliva Swabs to Check Drivers for Cannabis

Michigan, July 23 – Michigan State Police plan to implement one of the most invasive methods of drug testing in the country in a pilot program: saliva tests….Five counties will force their residents into becoming guinea pigs for what must be the worst thwarting of constitutional and privacy rights in recent years. Saliva-based tests will check drivers for cannabis, heroin, cocaine, and more…

However, (the saliva test) is highly problematic — impairment caused by THC can’t precisely be tested by blood, several studies have found. In fact, the Arizona Supreme Court unanimously ruled in November last year the presence of THC (tetrahydrocannabinol) — the psychoactive ingredient in cannabis — in the blood does not necessarily indicate impairment.

Granted, state laws about the presence of certain drugs and in what quantities vary widely, but using what amounts to unfounded ‘science’ to then create a law with even greater invasiveness marks quite the leap of logic…

Attorney Neil Rockind opposed Michigan’s saliva-based drug testing legislation, warning it would set “a dangerous precedent” in the state.

“The criminal justice system wants to take science and turn it into a fast, easy utility,” Rockind advised. “Science is neither fast nor easy.”…

Of course, scientific truth has never proven a deterrent to ever-more invasive criminal laws — most notably in the so-called "War on Drunk Driving". See my post How to Overcome Scientific Facts: Pass a Law.

(Thanks to "Joe".)

OC Man Gets 7 Years for DUI with Injury

July 25, 2016 / Dennis Bittinger / Leave a comment

In April of 2015, Leonardo Morales was driving his Chevy Tahoe and exiting the 55 freeway in Costa Mesa when he collided into a tree on the off-ramp. According to California Highway Patrol, two officers patrolling the area spotted the flames that erupted immediately following the collision.

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The officers who spotted the flames called in to dispatch for other officers to respond. Responding officers Daryl Hansend and Timothy Montoya found Morales on the floor, 22-year-old Kathy De Rosa in the front passenger seat, and a 2-year-old “running around and crying and pointing at the car,” said CHP Officer Florentino Olivera.

As the officers were attempting to extract De Rosa, they heard the cries of a baby on the floorboard of the rear driver’s side seat. The children, whose parents were Morales and De Rosa, were taken to Children’s Hospital Orange County. Morales and De Rosa were taken to Western Medical Center in Santa Ana.

Morales was later determined to have alcohol in his system and was subsequently arrested.

Both Morales and De Rosa had prior DUI convictions. In 2014, Morales pleaded guilty to misdemeanor driving under the influence and driving on a suspended license. In 2015, De Rosa pleaded guilty to misdemeanor driving under the influence, misdemeanor driving with a blood alcohol content of 0.08 percent or higher, and misdemeanor child endangerment since children were present in the vehicle when she was under the influence.

Last month, Morales pleaded guilty to driving under the influence of alcohol causing injury, driving with a blood alcohol of 0.08 percent or more causing injury, and two counts of child abuse and endangerment, all felonies. Additionally, Morales admitted sentencing enhancement allegations that he inflicted great bodily injury and great bodily injury on a child younger than five-years-old.

Morales was sentenced to seven years in prison just last week.

Unfortunately for Morales, a DUI may be elevated, and was in his case, to a felony when the DUI leads to the injury of another under California Vehicle Code 23153.

Although Morales was sentenced to seven years, he was originally facing two, three, or four years in a California State Prison, an additional and consecutive three to six years in prison for each other person who suffered great bodily injury, a “strike” on his record under California’s Three Strikes Law, up to $5,000 in fines, and 18 or 30 month DUI program, restitution to the victim or victims, a Habitual Traffic Offender (HTO) status with the California DMV for three years, and a five year revocation of driving privileges.

DUI with injury can also be charged as a misdemeanor. Although it was highly unlikely in Morales’s case given the facts, it is possible. If originally charged as a felony, alternatively a plea deal could involve reducing the charge to a misdemeanor. As a misdemeanor, the penalties include informal summary probation for three to five years, up to a year in county jail, up to $5,000 in fines, a three, nine, 18, or 30-month DUI program, restitution to the victim or victims, and a one or three year suspension of driving privileges.

For this reason, it is extremely important to hire a competent and experienced California DUI attorney to negotiate the best plea deal possible or, if the prosecutors unwilling to budge, fight the case through trial and achieve a not guilty verdict.

California’s DUI Education Programs

July 19, 2016 / Dennis Bittinger / Leave a comment

When a person is convicted of a California DUI, they face a number of penalties one of which is to attend a court-approved DUI program. The most common of inquiries regarding the programs have to do with their duration. The length of the required program depends on the individual facts and circumstances of the case.

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I would be remiss if I first did not explain that the names of each program relate to the legislative bill that created the program.

When a person under the age of 18 is convicted of a California DUI, they may be required to attend AB-803. AB-803 is a 12-hour program that is attended over the course of six weeks.

A “wet reckless” conviction is a reduction from an original DUI charge. As such, it may allow for only a 12-hour program called SB-1176 which taken over six weeks. It should be noted that a reduction to a wet reckless will not automatically call for the SB-1176 program. It may be that a longer program will be required by the court. Furthermore, the California DMV will also require at least a three month program before it will reinstate driving privileges following a DUI suspension.

A three-month, 30-hour program called AB-541 is typically required for a first-time DUI or wet reckless reduction assuming that the facts are not particularly aggravating. However, if the DUI case involves a crash or a blood alcohol content of 0.08 percent to 0.14 percent.

If, however, a first time California DUI involves a blood alcohol content between 0.15 percent and 0.19 percent, a person could be required to attend AB-762. AB-762 is a six month program usually to be attended once a week for two hours.

When a first-time California DUI involves particularly aggravating circumstances such as a vehicle collision or a blood alcohol of 0.20 percent or more, the court may require a nine-month DUI program called AB-1353. AB-1353 usually consists of 60 hours of class time.

If a person is convicted of a second or more DUI or wet reckless within a ten-year period, they face a multiple-offender program called SB-38. SB-38 is an 18-month program. Since SB-38 is a rather lengthy course, the court will likely require several progress reports throughout the 18-month period.

Although highly unusual, the court can impose the longest of the California DUI programs. SB1365 is a 30-month program and is usually required when a person suffers two or more California DUI related convictions within ten years or when the case involves extremely aggravating facts such as an extremely high BAC level. SB1365 is only offered in Los Angeles County and Stanislaus County.

It is important to note that there is no hard and fast rule to know exactly which California DUI program will be required. It really will depend on the circumstances and facts surrounding the case, the discretion of the court, and the ability of your DUI attorney. This is why it is extremely important to hire a competent DUI attorney to fight for the shortest program, possibly even no program.

Forced Catheterization in DUI Arrests Continues

July 12, 2016 / Dennis Bittinger / Leave a comment

So you’re driving home after a dinner…and you’re pulled over by the police. The officer asks you if you’ve been drinking, and when you reply that you have not, he asks you to step out of the car and gives you a field sobriety test.. He then administers a portable breath test. When the results indicate no alcohol in your system, he tells you that he suspects you are under the influence of some type of drug and arrests you.

The officer then drives you to a nearby medical facility and tells you that you have to give him a urine sample. Angry for having been wrongfully arrested, and believing you have a right to refuse, you decline.

What happens next? Well, it could get painful….

Police Use Catheters, Force to Collect Urine Samples

Pierre, SD. July 5 — Police in South Dakota are collecting urine samples from uncooperative suspects through the use of force and catheters, a procedure the state’s top prosecutor says is legal but is criticized by others as unnecessarily invasive and a potential constitutional violation…

It’s unclear how widespread the practice of forced catheterization is in South Dakota. Attorney General Marty Jackley said in an interview that the practice is permitted with a signed court order under state law, and he cited several cases that supported the legality of the practice.

The attorney general said law enforcement would prefer not to collect urine samples by force, but that ultimately it’s up to suspects if they don’t want to cooperate.

“I don’t think anyone wants to go through that methodology,” Jackley said…

Police always take the person to a hospital if they are going to take a forced urine sample, said Tim Whalen, a Lake Andes attorney who has represented a couple of clients who have had urine samples taken without permission. Health care workers at the Wagner and Platte hospitals conduct the procedure on a regular basis, he said.

“They don’t anesthetize them,” Whalen said. “There’s a lot of screaming and hollering.”…

Do you think this practice is limited to South Dakota? Take a look at some of my earlier posts, such as Catheter Forced Up Penis After Arrest (Washington), Another Weapon on the War on Drunk Driving: Forced Catheterization (Indiana) and DUI Suspect Forced to Have Penis Catheterized (Utah).

Failing the Field Sobriety Tests without Being Drunk

July 11, 2016 / Dennis Bittinger / Leave a comment

Field sobriety tests and DUI stops go hand in hand. In fact, field sobriety tests are the things that my clients most closely associate with a DUI stop. Yet, very few people know that they are optional. Because most people mistakenly believe that they are mandatory, they take them and “fail” even though they may not even be under the influence.

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So how does a person fail the field sobriety tests while without even being under the influence?

Law enforcement agencies in California and throughout the country use a number of field sobriety tests to gauge a person’s coordination, balance, and simple motor skills. The National Highway Traffic Safety Administration has approved three field sobriety tests as “standardized.” These test include the Horizontal Gaze Nystagmus (HGN) Test, the Walk-and-Turn Test, and the One-Leg Stand Test. However, police officers also use non-approved field sobriety tests to gather the probable cause necessary to make a DUI arrest. Those tests include the Rhomberg Balance Test, the Finger-to-Nose Test, and the Finger Tap Test.

Although field sobriety tests are intended to gauge a person’s coordination, balance, and simple motor skills after having consumed alcohol, standardized or not, field sobriety test can be unreliable for a number of reasons.

Tiredness:

We all know that driving tired is dangerous. However, while it may be dangerous, it is not illegal. When a person is tired, they exhibit many of the same symptoms of intoxication. Poor coordination, lack of balance, and trouble with motor skills are symptoms of both tiredness and intoxication. Whether the symptoms come from tiredness or intoxication, they can cause a person to fail field sobriety tests. What’s worse is that when a person is tired, they also display other symptoms of intoxication that officers often look for during a DUI stop; bloodshot water eyes and slurred speech.

Physical Problems:

Many people experience physical problems or disabilities which may affect how a person performs on field sobriety tests. Problems such as knee or back pain would make it difficult to perform the physical requirements of field sobriety tests.

People who are older or over weight, may have trouble performing the field sobriety tests for the same reasons.

Balance Problems:

Many times people are suspected of driving drunk following a vehicle collision and are often given field sobriety tests shortly after the collision. Poor performance on the field sobriety tests is attributed to intoxication rather than the after-effects of a vehicle collision.

Without even knowing it, many people suffer from inner ear problems. The inner ear contains a small organ called the labyrinth that helps people maintain balance. When the labyrinth is disrupted, so too is that person’s balance. Some of the things that can disrupt the labyrinth include infections and illness, head trauma, age, and tumors, to name a few.

Nervousness:

Have you ever been pulled over? We you nervous? My guess is that you answered yes to both questions. It goes without saying that people are nervous and stressed when they get pulled over. When people are nervous and stressed, they have difficulty concentrating. Unfortunately, concentration is a key component in completing the field sobriety tests. Officers will “fail” a person if they cannot follow instructions in performing the field sobriety tests even though it was due to a lack of concentration, not intoxication.

Officer Interpretation:

Much of the time, officers have already made up their minds that a person is driving under the influence when they make the DUI stop. This pre-conceived notion in conjunction with a psychological phenomenon called the “confirmation bias” causes the officer to interpret field sobriety test performance as “failing” regardless of how the person actually performs.

Drunk Driving….on a Bicycle

July 6, 2016 / Dennis Bittinger / Leave a comment

I’ve posted in the past about people being arrested for driving a bicycle under the influence. In these cases, the courts have often decided that a bicycle qualifies as a "vehicle" and so riding one triggers all of the usual drunk driving laws and penalties. See, for example, Drunk Biking, DUI Roadblock: 240 Sober Drivers, 1 DUI Bicyclist and DUIs on Bicycles.

These posts have often been met with disbelief. Many of this blog’s readers cannot imagine that law enforcement would waste their limited resources on something so trivial — or even that it is possible to be arrested and convicted of drunk driving on a bike.

For those reacting with this understandable incredulity, I would refer them to the following YouTube video, published a couple of weeks ago: LAPD Arrests Man Walking Bike for DUI.

The video, taken by a bicyclist watching another bicyclist pulled over by a Los Angeles Police Department motorcycle cop, shows the man given field sobriety tests by the officer — 3 times (which he appears to perform well). He is then also given a field breath test – two separate batteries of testing. (Note: As riding a bicycle does not require a driver’s license, there is no "implied consent" authorizing a breath test.) During the questioning and testing, another LAPD motorcycle cop arrives, presumably as backup — followed a few minutes later by yet another officer in a police car. The bicycle rider is then arrested for drunk driving, handcuffed and driven away.

Another victory in MADD’s "War on Drunk Driving".

(Thanks to "Joe".)

DA Walks Away from what should have been a DUI Stop

July 5, 2016 / Dennis Bittinger / Leave a comment

Police are supposed to be neutral and gather the evidence whether incriminating or exculpatory. They are not supposed to side with either the prosecution or the defense. This simply isn’t the case. More often than not, police try to find incriminating evidence, and only incriminating evidence, even when it might not exist…

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…except when the suspect is a district attorney.

Earlier this month, a driver called 911 to report a suspected drunk driver in Silver City, New Mexico. Cell phone video confirmed the suspected drunk driver’s poor driving.

When Silver City police arrived, they noticed that the suspect was recently re-elected district attorney of Grant, Luna, and Hidalgo counties, Francesca Estevez.

An officer’s body camera captured the bizarre interaction between police and Estevez.

"I have a flat! And I kept going over, and over!" Estevez said from inside the car. "I was coming in from Deming and the car kept swinging this way!"

Moments later, Estevez said that she was coming from Lordsburg.

In addition to the inconsistent statement, Estevez was slurring her speech, having trouble on her feet, fumbling with her phone, and went on a strange rant.

“We don’t want the U.S. Department of Justice to start looking down here,” she said. “It’s gotten to that point. Most of you are good.”

“What do you think?” asked Officer Leticia Lopez who was wearing the body camera. “She’s loaded, she almost fell down,” responded Officer Kyle Spurgeon.

New Mexico State Police were called in to assist with the stop. However, Officer Alyssa Carasco of the New Mexico State Police Department appeared to be disinterested in initiating a DUI investigation.

“If you have a problem with me not doing anything, then you can go ahead and do something. I’m not,” Carasco told Lopez.

Then the video appears to show Estevez appear to practice a heel-to-toe field sobriety test along a crack in the sidewalk.

What’s more, as Estevez was allowed to drive away, she ran into a curb right in front of the officers.

Had this been anyone else (well except maybe another officer), they would have been investigated and arrested on suspicion of DUI.

And so I ask: Who are the police working for?

New Mexico State Police has launched an internal investigation. It has yet to be determined whether Silver City Police will do the same.

DUI Lawyer Blog

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Month: July 2016

Coming Your Way: Roadside Saliva Tests

OC Man Gets 7 Years for DUI with Injury

California’s DUI Education Programs

Forced Catheterization in DUI Arrests Continues

Failing the Field Sobriety Tests without Being Drunk

Drunk Driving….on a Bicycle

DA Walks Away from what should have been a DUI Stop